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Use or Possess Abalone Equipment to Exceed More Than Twice Catch Limit

– section 37(1) of the Fisheries Act 1995

A person who uses or possesses a commercial quantity of abalone equipment in order to take more than twice the catch limit for abalone may be charged under section 37(1) of the Fisheries Act 1995.
Fishing nets and boats docked
This is a summary offence and will be dealt with in the Magistrates’ Court.
 
What is the legal definition of Use or Possess Abalone Equipment to Exceed More Than Twice Catch Limit?
The Fisheries Act 1995 defines ‘commercial abalone equipment’ as – any device or mechanical thing that is designed for use, or that is capable of being used, for or in connection with the taking of abalone, and includes any underwater breathing apparatus, knife, probe, lever, iron or bar.

The Fisheries Act 1995 also defines ‘abalone’ as blacklip and greenlip abalone and includes all other species, forms, races and hybrids of abalone.

The Victorian Fisheries Authority sets the following limits for 2017/2018:

  • Eastern Zone – 352.5 tonnes blacklip
  • Central Zone – 274.0 tonnes blacklip, 3.4 tonnes greenlip
  • Western Zone – 63.2 tonnes blacklip, 1.4 tonnes greenlip.
Examples of Use or Possess Abalone Equipment to Exceed More Than Twice Catch Limit
  • Possessing nets to capture more than twice the catch limit of abalone;
  • Possessing a mechanical device for catching more than twice the catch limit of abalone;
  • Possessing an underwater breathing apparatus to capture more than twice the catch limit of abalone.
Elements of the offence
The prosecution must prove:

  • The accused used or possessed commercial abalone equipment; and
  • The possession of the said equipment was to take more than twice the catch limit for abalone
Legislation
The legislation for this offence can be found on section 37(1) of the Fisheries Act 1995.
 
If you have been charged with this offence, you may rely on any of the following defences:
  • Lack of intent to possess;
  • Factual dispute as to possession;
  • The Prosecution cannot prove beyond reasonable doubt that an offence has been committed beyond reasonable doubt.
Questions in cases like this
  • Did you possess the equipment?
  • Did you possess the equipment because you were trying to catch more than twice the limit of abalone?
  • How much abalone did you catch?
If you have been charged, you should call Doogue + George Defence Lawyers to discuss your matter with one of our specialist lawyers. A finding of guilt for this offence can have damaging consequences that can otherwise be prevented or effectively managed by competent representation.
 
This offence carries a maximum fine of 200 penalty units (around $33,000) or 12 months imprisonment. It should be noted that more significant breaches of this section would see a penalty in the higher end of the sentencing range. For example, the scale of the commercial equipment used or possessed. These offences are more and more often involving periods of imprisonment as the penalty.